Madhya Pradesh High Court
Baijnath Sharma vs Ramniwas Upadhyay on 17 November, 2016
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Baijnath Sharma and Ors Vs. Ramniwas Upadhyay
Cr.R. No.394/2015
17.11.2016
Shri Jitendra Sharma Advocate for the petitioners.
Shri Deepak Khot, Advocate for Respondent.
Revisional powers under Sec. 397 r/w Sec. 401 of Cr.P.C are invoked for assailing the interlocutory order dated 20.4. 2015 by which an application preferred by the petitioners accused u/S. 233 (3) Cr.P.C for compelling the attendance of Mohanlal Sharma, Yogesh Deshmukh, Yashpal Singh Jath and Ashok Argal who are all government servants as witnesses in support of the defence, has been rejected.
Learned counsel for the rival parties are heard. It is seen from the record that the sole reason for passing the impugned order assigned by the learned trial Judge is that on earlier occasion a similar application filed by the accused petitioner was considered and dismissed on 7.4. 2015.
It is admitted at the bar by the counsel for the rival parties that on the earlier order of dismissal dated 7.4.15 of the similar interlocutory application has not been assailed by the petitioner. It is further not disputed that in the earlier application containing names of 17 persons who were proposed as defence witnesses included the four persons who were sought to be summoned by the subsequent application which was dismissed by the impugned order.
Learned counsel for the petitioner submits by referring to the provisions of Sec. 233 (3) of Cr.P.C. that it is mandatory on the part of the learned trial judge to issue process compelling the attendance of witnesses sought by the accused to be produced in support of defence since the said provision is couched in mandatory language.
On the other hand learned counsel for the respondent submits that if the learned trial judge had allowed the subsequent 2 Baijnath Sharma and Ors Vs. Ramniwas Upadhyay Cr.R. No.394/2015 application it would have amounted to review of it's order dated 7.4. 2015 and since the concept of review is foreign to the scheme of Cr.P.C the order under challenge is sustainable in law.
While exercising revisional jurisdiction this court is conscious of it's limited scope of interference. The interference can be made only when it is found that the order assailed has been passed by the court below by exceeding it's jurisdiction or by failing to exercise it's jurisdiction or by exercising the jurisdiction in a wrong manner which has led to failure of justice.
The reason assigned by the trial judge does not appear to be unlawful since allowing the subsequent application in the face of failure of the petitioner to assail the earlier order of rejection dated 7.4. 2015 of a similar application, would have amounted to review of the earlier order dated 7.4. 2015.
Sec. 233 (3) Cr.P.C empowers the trial judge to dismiss an application made by an accused for compelling attendance of witnesses in support of defence if the same results into defeating the ends of justice.
This court is of the considered view that allowing of the repeat application preferred by the accused in the face of the earlier unchallenged order dated 7.4. 2015 would have infact amounted to defeating of the ends of justice.
No fault can be found in the limited revisional jurisdiction of this court in the order passed by the trial judge.
In view of the above, the petition stands dismissed.
(Sheel Nagu) Judge ar